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ELRCOtherJudicial Review (Chamber Summons) Application dated 27th November 2023· [2023] KEELRC 3245 (KLR)

Monyenye v National Police Service Commission & 3 others (Judicial Review E001 of 2023) [2023] KEELRC 3245 (KLR)

High Court of Kenya
11 December 2023
1,413 words in judgment
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The bottom line

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What this practically means

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Executive summary

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A Police Constable interdicted on 17th November 2023 by the Sub-County Police Commander, Kakamega Central, following his arrest by EACC officers on allegations of receiving a Kshs. 2,000 bribe, sought leave to institute judicial review proceedings for certiorari and prohibition against the interdiction, and asked that the leave operate as a stay of the interdiction with restoration of his full salary. Leave was granted on 27th November 2023, and the court directed an inter partes hearing on whether the leave should operate as a stay. The respondents entered appearance but did not attend the hearing; the application was thus unopposed and argued orally. Counsel for the applicant relied on authorities on irreparable harm, the finality of the decision sought to be stayed, and averting the greater injustice, including Radido J's judgment that a police officer is entitled to a hearing before interdiction. The court found no irreparable harm since the applicant remained on salary and could recover any shortfall if the interdiction were set aside; evidence from the Bar was inadmissible. Applying the reasoning in the Akuku decision and Maraga J's ruling in Taib Ali Taib, the court held that the interdiction letter was the final decision for the purposes of the proceedings, that a stay at this stage would be tantamount to granting the substantive orders sought and would improperly compel rather than restrain a public body. The court ordered that the leave shall not operate as a stay, made no order as to costs, and gave directions for the filing and service of the substantive Notice of Motion within 14 days, responses within 14 days of service, and pretrial directions on 24th January 2024.

Key legal issues

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01

Whether leave to apply for certiorari and prohibition should operate as stay of the interdiction

Holding

No. The interdiction letter dated 17th November 2023 is a final decision; staying it at this stage would grant the final relief sought in the substantive motion, and the direction to restore full salary would improperly compel a public body to act.

Reasoning

The court examined the three grounds argued - irreparable harm, whether the decision was final, and averting greater injustice. It found no irreparable harm since salary continues to accrue and is recoverable. Relying on the Akuku decision and the authorities cited therein, it held a stay at leave stage would prejudge the substantive judicial review. It also relied on Taib Ali Taib that a stay restrains rather than compels action. Accordingly leave was to operate without stay, with directions to file the substantive motion.

p. 4
02

Whether the Applicant demonstrated irreparable harm

Holding

No - the Applicant remains on salary (even if at half) and can recover the full salary if the interdiction is set aside; assertions from the Bar about reduced salary had no evidentiary support.

Reasoning

Counsel asserted from the Bar that salary had been reduced to half and that the Applicant had been directed to vacate police quarters and report twice weekly to the OCS. The court noted evidence from the Bar is inadmissible and there was no evidence before court. The payslip annexed (DM3) showed he was still receiving salary, negating irreparable harm.

p. 3

Legal principles established

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  • Where the decision sought to be stayed is final and complete, granting a stay at the leave stage of judicial review would be tantamount to granting the substantive orders sought and is inappropriate
  • A stay is appropriate only to restrain a public body from acting, not to compel it to act

Court orders

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  1. 1.Leave granted on 27th November 2023 shall not operate as stay of the interdiction decision
  2. 2.The Exparte Applicant to file the Notice of Motion (JR suit) within 14 days and serve
  3. 3.The Respondents to have 14 days upon service to file response; the Exparte Applicant at liberty to reply
  4. 4.Pretrial directions on 24th January 2024
  5. 5.Notice to issue
  6. 6.No order as to costs

Authorities

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Legislation

  • National Police Service Commission (Discipline) RegulationsProvisions relied on for interdiction
  • Bribery ActOffence of receiving a bribe (alleged)

Cases cited (7)

  • R v National Transport Authority and 10 others
  • Jared Benson Kagwana v Attorney General
  • Taib Ali Taib v Minister of Local Government and others
    HC Misc Application no. 158 of 2006
  • R v Nairobi City Count Assembly Service Board Exparte Applicant Pauline Sarah Akuku
    (2022) eKLR
  • Beatrice Kwamboka v Leader of Majority Party of the Nairobi County Assembly
    (2016) eKLR
  • Kazungu Ngumbao Jeremiah & 3 others v Attorney General & 2 others
    (2015) eKLR
  • Taib a Taib v Minster of local Government & 3 others
    HC Misc. 158 of 2006
Jurisdiction invoked
Judicial review jurisdiction of the High Court under the Fair Administrative Action Act and Order 53 of the Civil Procedure Rules (leave to institute judicial review for Certiorari and Prohibition)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Monyenye v National Police Service Commission & 3 others (Judicial Review E001 of 2023) [2023] KEELRC 3245 (KLR)", Case Analysis (2023). Judicial Review (Chamber Summons) Application dated 27th November 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3245/eng@2023-12-11

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.